EX-99.7
CONSULTING AGREEMENT
AGREEMENT made as of the __ day of March, 2002 (the "Effective Date"),
between Xxxxxx Tree Construction, Inc., which may become known as Nutritionary,
Inc. ("Company"), and Xxxxx Xxxxxxx, having an address at 0 Xxxxxxxxx Xxxxx,
Xxxx Xxxxxxxx, XX 00000 ("Consultant").
W I T N E S S E T H:
WHEREAS, in recognition of the Consultant's experience and abilities,
the Company desires to assure itself of the services of the Consultant in
accordance with and subject to the terms and conditions provided herein; and
WHEREAS, the Consultant wishes to perform services for the Company in
accordance with and subject to the terms and conditions provided herein; and
NOW, THEREFORE, in consideration of the mutual premises and the
respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. ENGAGEMENT AS CONSULTANT. The Company hereby agrees to engage
the Consultant, and the Consultant hereby agrees to perform services for the
Company, on the terms and conditions set forth herein.
2. TERM. The term of this Agreement shall commence on the Effective
Date, and unless terminated earlier or extended as provided below, shall
continue for a period of two (2) years from such date (the "Term").
3. POSITION; DUTIES. During the Term, the Consultant shall perform such
services relating to the business of the Company as the Consultant and the
Company shall mutually agree. The scheduling of Consultant's time shall be
mutually agreeable to the Consultant and the Company. The Company acknowledges
that the Consultant's primary business activities are focused on other
businesses and opportunities other than the business of the Company, and Company
acknowledges that Consultant shall continue his primary role in connection with
such other primary businesses and activities; Consultant shall be permitted to
pursue all such other businesses and activities, whether of a personal or
business nature. Accordingly, Consultant will not always be immediately
available to the Company. The Company acknowledges and agrees that Consultant
shall not be required to devote his full time, or any specific quantity of time,
to the business of the Company or perform any services at a specific geographic
location.
4. INDEPENDENT CONTRACTOR. During the Term, the Consultant shall be
an independent contractor and not a joint venturer, partner or employee of the
Company. Accordingly, Consultant shall be responsible for payment of all taxes,
including any Federal, State and local income tax.
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5. NATURE OF SERVICES. The services provided by the Consultant shall
be advisory in nature and subject to the general supervision of and the policy
decisions of the Company at all time.
6. COMPENSATION; EXPENSES. (a) In consideration for the services to be
provided by the Consultant hereunder, the Company shall issue options to
purchase shares of the Company's common stock, par value $.001 per share, in
amounts and at exercise prices as the Board of Directors of the Company shall
determine, pursuant to the form of option annexed hereto as EXHIBIT A.
(b) All reasonable expenses incident to the rendering of
services by the Consultant hereunder will be paid by the Company; the prior
written approval of the Company shall be obtained for all expenses exceeding
$500.00. If any such expenses are paid in the first instance by the Consultant,
the Company will reimburse the Consultant therefor, within ten (10) business
days of presentation of evidence of such expenses.
7. TERMINATION. Notwithstanding the provisions of Section 2 hereof, the
Consultant's engagement may be terminated by the Company as follows:
(a) By action taken by the Board, the Consultant's engagement
may be terminated only for cause (as defined below), effective as of such time
as the Board shall determine. Upon termination of the Consultant's engagement
pursuant to this Section 7(a), the Consultant shall have no further obligation
or duties to the Company.
(b) In the event (i) of the death of the Consultant or (ii)
the Consultant becomes disabled, that is the inability of the Consultant, by
reason of physical or mental disability, to continue substantially to perform
his duties hereunder for any period of ninety (90) consecutive days
("disabled").
(c) For purposes of this Agreement, the Company shall have
"cause" to terminate the Consultant's engagement under this Agreement only upon
(i) the engaging by the Consultant in criminal misconduct (including
embezzlement and criminal fraud) which is materially injurious to the Company,
monetarily or otherwise, (ii) the conviction of the Consultant of a felony, or
(iii) gross negligence on the part of the Consultant. The Company shall give
written notice to the Consultant, which notice shall specify the grounds for the
proposed termination and the Consultant shall be given thirty (30) days to cure
if the grounds arise under clause (iii) above.
Upon the termination of Consultant's engagement pursuant to this
Section 7, the Consultant shall have no further obligation or duties to the
Company.
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8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Consultant from and against any and all losses, claims, damages, liabilities and
expenses (including, without limitation attorneys' fees and costs incurred in
the investigation, defense and settlement of the matter) suffered or incurred by
Consultant which arises out of this Agreement or otherwise out of the
performance by the Consultant of his obligations hereunder, unless, such losses,
claims, damages, liabilities or expenses are found by a final determination of a
court of competent jurisdiction to have arisen out of the willful misconduct of
the Consultant in performing his services hereunder (pending any such final
determination, the indemnification and reimbursement provision of this Agreement
shall apply and the Company shall be obligated to reimburse the Consultant for
his expenses). If for any reason the foregoing indemnification is unavailable to
the Consultant, or insufficient to hold him harmless, then the Company shall
contribute to the amount paid or payable by the Consultant as a result of such
loss, claim, damage or liability in such proportion as is appropriate to reflect
not only the relative benefits received by the Company on the one hand and the
Consultant on the other hand, but also the relative fault of the Company and the
Consultant, as well as any other relevant equitable considerations. The
reimbursement, indemnity and contribution obligations of the Company under this
paragraph shall be in addition to any liability which the Company may otherwise
have and shall be binding and inure to the benefit of any respective successors,
assigns, heirs and personal representatives of the Company and the Consultant.
(b) The Consultant agrees to give the Company an opportunity
to participate in the defense or preparation of the defense of any action
brought against the Consultant to enforce any such claim or liability and the
Company shall have the right so to participate. Failure to give such notice,
however, shall not affect or limit the Company's liability under the foregoing
indemnity.
The provisions of this Section 8 shall survive the termination and expiration of
this Agreement.
9. SUCCESSORS; BINDING AGREEMENT. This Agreement and all rights of the
Consultant hereunder shall inure to the benefit of and be enforceable by the
Consultant's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. This Agreement may not
be assigned by either party without the prior written consent of the other
party.
10. MISCELLANEOUS.
(a) HEADINGS. The headings contained in this Agreement are
or reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(b) ENFORCEABILITY. If any provision which is contained in
this Agreement should, for any reason, be held to be invalid or unenforceable in
any respect under the laws of any State of
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the United States, such invalidity or unenforceability shall not affect any
other provision of this Agreement. Instead, this Agreement shall be construed as
if such invalid or unenforceable provisions had not been contained herein.
(c) NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered personally
or sent by registered or certified mail, return receipt requested, to the other
party hereto at her or its address as set forth in the beginning of this
Agreement. Either party may change the address to which notices, requests,
demands and other communications hereunder shall be sent by sending written
notice of such change of address to the other party in the manner above
provided.
(d) GOVERNING LAW; VENUE. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New Jersey.
The Company hereby irrevocably consents to the exclusive jurisdiction of any
state or federal court for the county or judicial district in the State of New
Jersey, and consents that all service of process be sent by nationally
recognized overnight courier service directed to the Company at the Company's
address set forth herein and service so made will be deemed to be completed on
the business day after deposit with such courier; provided that nothing
contained in this Agreement will prevent the Consultant from bringing any
action, enforcing any award or judgment or exercising any rights against the
Company individually, against any security or against any property of the
Company within any other county, state or other foreign or domestic
jurisdiction. The Consultant and the Company agree that the venue provided above
is the most convenient forum for both parties. The Company waives any objection
to venue and any objection based on a more convenient forum in any action
instituted under this Agreement.
(e) ENTIRE AGREEMENT. The parties have not made any
representations, warranties or covenants with respect to the subject matter
hereof which is not set forth herein, and this Agreement constitutes the entire
agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the parties with respect to
the subject matter hereof are merged in this Agreement which alone fully and
completely expresses their agreement. This Agreement may not be changed,
modified, extended, terminated or discharged orally, but only by an Agreement in
writing, which is signed by all of the parties to this Agreement.
(f) FURTHER ACTIONS. The parties agree to execute any and all
instruments and documents, and to take any and all such further actions
reasonably required to effectuate this Agreement and the intents and purposes
hereof.
(g) WAIVER. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants or conditions of this Agreement or to exercise any option herein
contained shall not be
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construed as a waiver or relinquishment for the future of any such provisions,
covenants or conditions, (ii) the acceptance of performance of anything required
by this Agreement to be performed with knowledge of the breach or failure of a
covenant, condition or provision hereof shall not be deemed a waiver of such
breach or failure, and (iii) no waiver by any party of one breach by another
party shall be construed as a waiver with respect to any other breach of this
Agreement.
(h) COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXX TREE CONSTRUCTION, INC.
By:
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Name:
Title:
CONSULTANT
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Xxxxx Xxxxxxx
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